[2017] KEHC 1128 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 2989 OF 2004

IN THE MATTER OF THE ESTATE OF ESTHER GATHONI (DECEASED)

GRACE WAIRIMU MACHUA……………...…1ST APPLICANT

ROSEMARY WAMAITHA KAMAU…………2ND APPLICANT

AND

JACINTA NDUTA …………………………...…...RESPONDENT

JUDGMENT

1. On the 6th of October 2004 Samuel Saru and Elizabeth Wambui son and daughter of the deceased filed a petition for Letters of Administration Intestate for the estate of Muthoni Mungai alias Esther Gathoni the deceased. They listed the following persons as surviving the deceased;

i. Elizabeth Wambui

ii. Samuel Saru

iii. Jacinta Nduta

iv. Mary Ngendo

Other Dependents;

i. Mercy Gathoni

ii. David Mungai

iii. Nector Ndichu

iv. Teresia Njeri

v. Kanja Kamau

The assets of the deceased’s estate as per the petition are L.R. Dagoretti/ Mutuni/92 and Benefits and Death Gratuity from Ministry of Water Department.

2. The grant was confirmed on the 28/11/2005. The estate was to be distributed as stated in the supporting affidavit amongst the children of the deceased and the dependants. On the 31/10/1007 a Summons for Revocation or Annulment of the grant was filed by Machua Mbugua and Sammy Kamau Wokabi against Elizabeth Wambui. In their affidavit dated the 5/10/2007 the Objectors claim that the petitioners did not disclose that the deceased held title No. Dagoretti/ Mutuni/92 as trustee for herself and her sons Samuel Saru, Kanja Kamau, Jane Mbaire. David Mungai and Nector Ndicu. That they did not disclose that the Objectors had purchased part of the said land and assumed possession of more than 12 years. Machua deponed that he has constructed a semi-permanent on his part of the said parcel of land in 1981 and has enjoyed quiet possession since then.

3. After Samuel Saru died on the 9/9/2007 Jacinta Nduta was substituted as an administrator. Subsequently Elizabeth Wambui too passed on and Jacinta Nduta remained as the only administrator.

4. After directions the Objectors case was heard. Grace Wairimu and Rosemary Wamaitha Kamau testified. Grace Wairimu is the wife of Machua Mbugua and Rosemary Wamaitha Kamau is the wife of Sammy Kamua Wokabi the initial objectors. They testified was that Machua Mbugua who has also passed on bought a portion a quarter (¼) of an acre of Dagoretti/ Mutuni/92 from the late Kanja Kamau who was the cousin of Esther Gathoni the deceased. Esther was registered as a trustee. According to Grace they have settled in the said land and have put up a semi-permanent structure. Rosemary testified that her late husband Sammy too bought quarter (¼) of an acre in 1983 from David Mungai Gitau a cousin of the late Esther Gathoni Mungai. Her husband also bought a quarter (¼) of an acre in 1983 from the late Nectarius Ndicu Mungai a cousin of the late Esther Gathoni Mungai.

5. The respondents called two witnesses Christopher Ndungu Mungai and Jacinta Nduta. They testified that the applicants are not beneficiaries of the deceased’s estate and that they have failed to prove that the grant should be revoked or annulled. That the deceased was holding the property in trust for the beneficiaries. According to Christopher and Jacinta they not aware of any sale of a portion of the said land and that the applicants have not exhibited any evidence of purchase or evidence in corroboration. .

6. Parties filed submissions which I have read and considered. The applicants submit that they have demonstrated that they lived in the said land for over for over 30 years having bought shares from some of the beneficiaries and that the administrators should have sought dissolution of the trusteeship and only shared what belonged to the deceased. That there was a concealment of material facts as there is evidence that the applicants acquired the three plots and that during the life time of the deceased they attempted to transfer the same. That the grant has become inoperative through the subsequent circumstances. The respondent submitted that the purchasers interests have not been sufficiently proved and neither can they claim the said parcels of land whether by adverse possession or purchasers interest. That they failed to prove all the ingredients of adverse possession. That the two purchasers never sought specific performance of the alleged agreements nor have they demonstrated that they obtained the Land Control Board consents as required in law.

DETERMINATION

7. The applicants allege that they are purchasers of a portion of land Dagoretti/Mutuni/92 the only asset of the deceased’s estate. The persons who are alleged to have sold the portions to them are deceased. They claim that they should be included in the deceased’s estate. They are not beneficiaries of the deceased estate as provided in law. According to the evidence adduced the deceased held the said parcel of land in trust for the beneficiaries who are alleged to have sold portions to the Objectors. There is a dispute as to whether the said parcel of land were sold to the Objectors and whether they are in occupation. The issue of the agreements or possession are not issues this court can determine in this succession cause. These issues should be determined in the Environmental and Land Court (ELC). I note that a case HCCC of 273 of 2007 (O.S) was filed over the said parcel of land but the court was not informed of the outcome. The Objectors can pursue their claim for the said portions of land at the ELC Court. I find further that the objectors have failed to show that the administrators failed to disclose material facts to the court at the time of obtaining the grant. The certificate of grant dated the 28th of November 2005 shows that the administrator apportioned the parcel of land as per the beneficiaries listed. I find no merit in the application and dismiss it. Each party to bear their own costs. It is so ordered.

Dated signed and delivered this 9th Day of November 2017

R.E. OUGO

JUDGE

In the presence of;

Mr. Ochwa holding brief for Mr. Njeru For the Applicants

Mr. Ochwa holding brief Mr. Nganga For the Respondents.

Ms. Charity Court Clerk